RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2017-00241
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20061015

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Rifleman, medically separated for “post concussion syndrome” with a disability rating of 10%.  

CI CONTENTION:  In addition to the post-concussive syndrome, the CI contended for application of §4.129 and also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned to those conditions determined by the PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB, but determined by the PEB to be not unfitting or non-compensable.  Any conditions outside the panel’s defined scope of review, and any contention not requested in this application, may remain eligible for future consideration by the Board for Correction of Military Records.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for the unfitting medical condition(s) at the time of separation.  The panel has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions; that role and authority is granted by Congress to the Department of Veterans Affairs, which operates under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20060823	VARD - 20071226	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post Concussion Syndrome	8045-9304	10%	Post Concussive Syndrome with Migraine Headaches and Vertigo	8045	10%	20071210	
Chronic Daily Post Traumatic Headache	Cat II					
Episodic Vertigo	Cat II					
Anxiety Disorder	Cat II	No VA Placement	
Cognitive Disorder	Cat II		
Amnesia to the Concussive Event	Cat III		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Post Concussion Syndrome.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s post-concussive syndrome began in July 2005 after he sustained a head injury from an IED blast.  He was taken to a local medical facility for evaluation and had amnesia for approximately two days.  He continued to suffer with constant headaches, spells of vertigo about twice a week, irritability, problems with concentration, sleep and anxiety.

At the 27 April July 2006 neuropsychological (NP) addendum to the MEB, 6 months before separation, the CI reported continued headaches and anxiety.  The examiner noted the CI had participated in a 12-week medication study for anxiety disorders following traumatic brain injury (TBI).  During his participation in the program, the CI was referred to a neurologist for evaluation of his cognitive functioning.  At the time, he reported problems with memory and concentration, word finding and increased clumsiness.  The CI was prescribed a medication to enhance his memory.  A brain MRI in March 2006 was normal.  The mental status examination (MSE) was unremarkable with the exception of self-reported “aggressive” mood.  Testing demonstrated overall intellectual abilities were in the average range.  However, there was mild impairment in processing speed and mild difficulty with immediate memory for verbally learned material.  The examiner concluded that the findings of the NP were consistent with a mild head injury.  A Global Assessment of Functioning (GAF) score of 65, for mild symptoms, was recorded.

During the 10 May 2006 psychiatry follow-up visit, the CI complained of sleep disruption several times each night, but reported fewer panic attacks and had stopped taking anti-depressant and anti-anxiety medication.  The MSE recorded mood as “OK,” with mildly anxious affect.  Memory and cognition were intact and there was no impairment in judgment.  The psychiatrist recommended return to unit and limited duty per neurology, indicating there were no mental health limitations of duty.

The 12 May 2006 MEB NARSUM neurological examination, 5 months prior to separation, noted complaints of global headache and cognitive decline.  Physical and neurological examinations were unremarkable.  The examiner stated that the CI was limited due to headaches and cognitive deficits.  The 16 May 2006 ENT addendum to the MEB, reported complaints of unsteadiness, vertigo (room spinning with eyes closed) and severe headaches.  The examiner noted that the CI had responded some to the therapy implemented to address vertigo, but continued to complain of unsteadiness, dizziness and headaches.  The CI was noted as unsafe for deployment and referred to the MEB.

The 5 July 2006 mental health addendum to the MEB documented memory problems and anxiety.  The psychologist noted the CI denied significant distress with any of his combat memories, nightmares or intrusive thoughts.  The MSE was unremarkable with the exception of “neutral to irritable affect.”  The CI was noted to have continued disrupted sleep that was complicated by headaches.  The psychologist listed the conditions of cognitive disorder, NOS, anxiety disorder due to closed head injury and post-concussive syndrome, and opined the CI had moderate industrial and military impairment.

At the 10 December 2007 VA Compensation and Pension (C&P) examination, 14 months after separation, the CI reported short-term memory issues, forgetfulness and continued problem with headaches.  He denied confusion and did not get lost when driving his car.  The CI drove himself to the examination.  He was employed full time at a local car dealership in the parts department, noted that the job was going well and his attendance was good.  He had missed work due to headaches, had some memory issues at work, but his memory problem had not interfered with work.  The CI also reported that he felt his memory ability had improved.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the post-concussion syndrome 10%, dual coded 8045-9304 (residuals of TBI-dementia due to head trauma).  The PEB listed chronic daily post-traumatic headache, cognitive disorder, episodic vertigo and anxiety disorder, as related (Category II) diagnoses contributing to the disability in this case.  The non-medical assessment, 5 months before separation, stated, “Due to his physical limitations the CI was ineffective as a Squad Automatic Gunner.  However, his performance in his present billet has been exceptional…the work he has done in Company B has been outstanding.”  There was no mention of cognitive or anxiety issues interfering with performance of duty.  The psychiatrist did not implicate a mental health condition as significantly interfering with duty performance, and made it clear that the anxiety disorder was due to the closed head injury.  The NP evaluation documented mild impairment and mild symptoms.  The panel concluded the Category II diagnoses were not separate conditions which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding).  The VA also rated the post-concussive syndrome 10%, 8045 (residuals of TBI), based on the C&P examination, citing “purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10% and no more under diagnostic code 9304.”

The VARSD in effect at the time of separation captured brain injuries under the generic category of brain disease due to trauma coded 8045.  There are two different scenarios for rating under this code; analogously with purely neurological deficits, or based on purely subjective symptoms.  In the absence of associated neurological disabilities (seizures, nerve paralysis, etc.), rating of this condition under 8045-9304 is limited to 10%, and cannot be combined with any other rating for a disability due to brain trauma.  Therefore, a higher rating than 10%, as assigned by the PEB, is not possible under this code. 

The panel also considered if a rating could be obtained under the 8100 code for migraine headaches.  The rating options under 8100 for migraine headaches rely on the frequency of ‘prostrating’ attacks, and VASRD §4.124a does not define ‘prostrating.’  The panel carefully considered the frequency and nature of the CI’s headaches including objective and corroborating subjective evidence.  The panel agreed that the review of the record did not show prostrating headaches occurring on average of once monthly, or more frequently, over the last several months prior to separation to support a rating higher than the 10% adjudicated by the PEB.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the post-concussion syndrome.  

Contended PEB Condition:  Amnesia to the Concussive Event.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not implicated in the non-medical assessment or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the post-concussive syndrome and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the contended amnesia condition, the panel recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

JAN 1 5 2019
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
Ref: (a) DoDI 6040. 44
In accordance with reference (a), I have reviewed the cases
listed below and approve the recommendations of the PDBR that the
following individual's records not be corrected to reflect a change
in either characterization of separation or in the disability
rating previously assigned by the Department of the Navy's Physical
Evaluation Board: